Law and Cabotage rules remain largely unchanged

by Daniel Joyce

The U.S. Immigration and Naturalization Service (INS) headquarters in Washington D.C. has issued a Memorandum to its field offices to provide border officers with guidance on cabotage issues.

While this sounds like good news, the fact of the matter is unfortunately, nothing significant has changed in INS cabotage policy. The memorandum provides an excellent summary of most of the major issues. The key principle in the topic of cabotage is the distinction between international commerce and domestic (U.S.) loads. The definition of “international commerce” is very strict, and any point-to-point activity in the U.S. will be regarded as domestic rather than international commerce. The mere fact that goods originate from a foreign source does not make the goods “foreign” for purposes of the immigration laws once the goods have come to rest at a U.S. location. The INS focuses on the transportation of goods from one location to another, not the origin or place of manufacture.

It appears that the only positive change is a clarification on trailer switching. The INS understands that trailer switching is necessary as part of international deliveries, due to Hours-of-Service rules or to allow drivers to make northbound deliveries closer to their home in Canada. The current rules allow a Canadian driver, with an international shipment, to meet at a drop yard or other location and switch trailers with another driver who is also delivering goods in an international movement. Both drivers must continue in an international move. The driver coming from Canada can switch and complete an international delivery to the U.S., and the driver coming from within the U.S., can switch and complete a delivery to Canada. Trailer switching is not allowed if the driver coming from within the U.S. will be making a delivery to another point within the U.S.

The memo also clarifies situations where a load is held up at a Customs warehouse or other government facility at the port of entry for government inspection or entry processing. The Canadian driver can enter with an empty trailer to pick up a loaded trailer previously brought from either Canada or Mexico and left at the site for inspection or processing, and then deliver that trailer to another point in the U.S. The driver must provide verification that the trailer has been under government control and that the goods originated outside the U.S. This exception is limited to goods under governmental control, and does not include goods at a Free Trade Zone or other similar designated area for international commerce.

The INS has confirmed that a U.S. carrier can hire a Canadian driver to engage in international trucking activity. The U.S. carrier may pay the driver, so long as the driver is engaged solely in international deliveries to or from the U.S.

Lawful activities

The following is a list of permissible activities that are considered to be incidental to international commerce…

Deadheading trailers: As part of an international delivery, a Canadian driver can deadhead a trailer from one location to another within the U.S., so long as the deadhead trailer is either the one the driver came in with or the one he is departing with. A driver cannot haul an empty trailer from one location to another for purposes of “spotting” or repositioning.

Bobtailing: A Canadian driver can enter the U.S. with an empty tractor to pick up a trailer for delivery to Canada or Mexico. A driver can drop a loaded trailer from Canada or Mexico at one location in the U.S., and drive the empty tractor to another location in the U.S. to pick up a loaded trailer for delivery outside of the U.S.

Yard Moves: A Canadian driver can “spot” or “shunt” an empty trailer within a yard or lot if the movement is required to facilitate the driver’s international delivery.

Loading and Unloading: The INS views activities such as load securement or the loading or unloading of international cargo as activities that are incidental to driving duties in international commerce. Drivers often have questions on this topic, so it may be helpful to elaborate. This does not mean that a driver is required to load or unload in all circumstances; that is a question of the driver’s job description and the workplace rules at the place of loading or unloading. It just means that if the driver does perform those duties, he will not be in violation of the INS laws. There may be reasons for a driver to refuse to load or unload, but it is not proper to refuse to do so on the grounds that such conduct is illegal under U.S. law.

Prohibited Activities

The following are examples of activities that are not permitted under the cabotage laws…

Free Trade Zones or Storage Facilities: It is commonplace for goods of foreign origin to be delivered to a storage facility in the U.S., pending further delivery to a U.S. point. A Canadian carrier cannot pick up such goods at a storage facility in the U.S. and deliver them to another location in the U.S. The opposite is also prohibited – a Canadian driver cannot pick up Mexican-bound freight in the U.S. and drop it off at a transfer point on the U.S. side of the Mexican-U.S. border.

Repositioning of Empty Trailers: A Canadian driver may not reposition an empty trailer between two points in the U.S., when the driver did not either enter with or depart with the trailer.

“Topping Up” With U.S. Merchandise: A Canadian driver may not “top up” an international shipment with U.S. domestic shipments.

“In-Transit” Foreign Trips: Canadian drivers cannot pick up goods in the U.S. and travel through Mexico or Canada to deliver the same goods to another location in the U.S.

I am disappointed that the INS did not expand any of its cabotage interpretations. The rule remains that, except for the very limited exceptions identified above, any pickup and delivery of the same goods or equipment within the U.S. is likely to be a cabotage violation.

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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  • I have a route that originates in the US, picks up two shipments in Michigan, we want to add a stop to pick up freight in Ontario, Canada, then the whole thing is delivered to a location in Mexico. Is this legal?

  • Have delivered load in southern states. No load from this area, can I using my own trailer back up to north states to direct of which enter USA.

  • I’m new to Trucking and would like an answer to this question.

    I delivered a load to Southern, PA, from Canada, my dispatcher dispatched me to pick up a load from another location in PA, then meet up with another driver from the same company and exchange trailers with a load coming from Canada. I then delivered the load that I switched trailers to a NY destination while the other driver took my load back to Canada.

    IS this a violation of US immigration laws?

    • It is not in violation with the US immigration laws, as long as you come back to Canada with the 2nd trailer (loaded or empty). You couldn’t pick up another load going to Canada and switch with another driver again. Basically, you can only touch 2 trailers within the USA as the trailer you are hooked on must be the one you entered the USA with or will be departing with.

  • Ok does this rule apply to Canadian driveway drivers, picking up a vehicle in us at manufacturing facility and delivering to a customer in the US?

  • Good morning, we have a question and we can’t find the answer…
    We are a Canadian carrier. We have been offered to move loaded containers shipped from overseas and to be delivered in a US city closed to the Canadian Border. We would then continue with this empty container in Canada for reloading and return it to an International Port to be exported overseas. Would this be considered cabotage. Thank you

  • I sell product and my sales person wants to move material we have in NJ to Ontario, can I move bulk truck material to Canada from the USA?

    • I don’t see a problem for you. You just need to complly with the Canadian Custom rules and to hire the services of a Custom Broker. We, as a carrier, move daily loads for NJ to Canada. Hoping this answer your question.

  • Need some advise,
    we are a Canadian Carrier, we are offered a run:
    pickup in Ontario then go to Ohio another pickup there, then go to another plant in Ohio deliver.
    is this legal ??

    • we are a Canadian Carrier, we are offered a run:
      pickup in US then go to NY on the way homeanother pickup there, then go to deliver In Ontario deliver.
      is this legal ??

  • I am a Canadian driver whose had enough driving hours to delivery…but got stuck on I90 in traffic due to an accident for 2 hours
    Then got inspected right after the traffic starts but my drive hours got consumed in traffic (as according to office sitting behind wheel is driving).

    Now the question is I have no driving time left to deliver this load but another my company driver coming on my route.

    Can we switch our load so he can deliver and I will deliver his load?

  • So did I read right that after you drop your load say Ontario to Tennessee, I can take a load from say Kentucky to Detroit, because from what I read that load is in the same path that you would be driving anyway to get back into Ontario

  • I am a Canadian with CDL from Winnipeg, MB. I’m obtaining a CDL license from Idaho surrendering my Canadian lisence. Is this a good idea? Can I then run point to point in United States? Pls come up with info. Appreciated

  • We are a Canadian. Company leasing our trucks to a us company with Canadian drivers can the drivers interstate is that legal

  • I am a Canadian driver I picked up a load a load of produce in overnight my my produce got frozen am I allowed to unload in the US? My insurance company says to leave it here.

  • Good morning, I have a question and I am not sure if this falls under your laws and cabotage rule.

    Can a Canadian based company move US domestic freight with US carriers .

    • Hi I m canadian driver.I just wanna make sure tht if I pick up a bound mexican load from any where in us and can I deliver it to any us mexico border at bounded warehose US it legal.

  • Hi ,im a canadian owner operator can i lease my truck to US trucking companies let me know pls thx ruby

  • Need some advise !

    We are Canadian carrier offered load in pic up in USA going to Canada with 2 stops one in the USA is this legal